A Q&A guide to competition law in Austria.
The Q&A gives a high level overview of merger control, restrictive agreements and practices, monopolies and abuse of market power, and joint ventures. In particular, it covers relevant triggering events and thresholds, notification requirements, procedures and timetables, third party claims, exclusions and exemptions, penalties for breach, and proposals for reform.
For a full list of recommended competition law firms and lawyers in Austria, please visit PLC Which lawyer?
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This Q&A is part of the PLC multi-jurisdictional guide to competition and cartel leniency. For a full list of Competition jurisdictional Q&As visit www.practicallaw.com/competition-mjg.
For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-mjg.
To maintain and secure effective competition the Austrian legal system has established a system of notification for transactions meeting certain thresholds. The relevant provisions are laid down in the:
Cartel Act (Kartellgesetz).
Competition Act (Wettbewerbsgesetz).
As well as regulating merger control these laws prohibit restrictive agreements and abuses of a dominant position (see Questions 13 and 27).
Transactions that meet the definition of concentrations under the Cartel Act must be notified to the Federal Competition Authority (Bundeswettbewerbsbehörde) (FCA), if the transaction exceeds certain turnover thresholds (see Question 2).
The following are collectively known as the Official Parties, and have responsibility for applying the merger control provisions:
The FCA.
The Federal Cartel Prosecutor (Bundeskartellanwalt) (FCP).
The Cartel Court (Kartellgericht) has decision-making authority over in-depth merger control investigations. The Supreme Cartel Court (Kartellobergericht) hears appeals from decisions of the Cartel Court.
Finally, the Competition Commission (Wettbewerbskommission) is an advisory body to the FCA.
See box, The regulatory authorities.
Concentrations that are within the meaning of the Cartel Act and subject to merger control are (section 7, Cartel Act):
The acquisition of an entire undertaking or a substantial part of it, particularly through merger or conversion into another corporate form.
The acquisition of rights giving control of an undertaking.
The direct or indirect acquisition of shares in a company, if this leads to the acquirer increasing its shareholding in the target to 25% or 50%.
Any agreement leading to the identity of at least one-half of the members of the management board or the supervisory board of two or more undertakings becoming identical.
Any other transaction resulting in one undertaking gaining a controlling influence over another.
The formation of a joint venture, performing on a lasting basis all the functions of an autonomous economic entity (that is, a full-function joint venture (section 7(2), Cartel Act)) (see Question 37).
The Cartel Act does not provide for a limitation period for the FCA to take action in relation to mergers.
Mergers must be notified if all of the following turnover thresholds are met (based on the turnover in the last financial year before the transaction) (section 9(1), Cartel Act):
The worldwide turnover of all undertakings concerned exceeds EUR300 million.
The combined domestic turnover of all undertakings concerned exceeds EUR30 million.
The individual worldwide turnover of at least two of the undertakings concerned exceeds EUR5 million.
However, where the thresholds are met, the merger does not need to be notified if both of the following apply (section 9(2), Cartel Act):
Only one of the undertakings concerned reached a domestic annual turnover of more than EUR5 million.
The other undertakings concerned reached a worldwide annual turnover of no more than EUR30 million.
Special threshold rules apply in the media sector (see Question 12, Media and telecommunications).
Mergers taking place outside of Austria are only exempt from the notification requirement if those concentrations do not have any impact on the Austrian market (section 24(2), Cartel Act). However, except in special cases, concentrations meeting the above thresholds will usually have such an impact. Concentrations with a community dimension must be notified to the European Commission.
All concentrations under the Cartel Act that meet the turnover thresholds must be notified to the FCA (see Question 2).
The undertakings concerned can decide when to notify, as there is no specific time limit for notification. However, the undertakings must receive clearance before implementing the transaction (see below, Obligation to suspend). Breaches of this rule are sanctioned by fines (see Question 9). Therefore, when deciding on the timing of the notification, to avoid delays the undertakings should bear in mind the time frame for the procedure (usually four weeks in Phase I) (see Question 4, Phase I proceedings). The best timing for a notification depends on the specific circumstances of the merger and should be chosen strategically. A formal signing is not required for the notification, however, the parties must be able to provide the necessary information and the closing of the transaction must be foreseeable.
To facilitate the notification process and avoid costly and time-consuming examinations, it is possible to enter into pre-notification talks with the FCA. However, after notification, it is also possible to discuss competition problems, amendments to the notification, or possible remedies during Phase I and II proceedings (see Question 8).
The Cartel Act only requires an accurate and complete notification from one of the undertakings. Therefore, the notification can be filed either jointly or by one of the undertakings concerned.
Notifications must be submitted to the FCA in four hard copies, either personally or by mail.
The law does not provide a specific form. However, it is advisable to use the notification form provided by the FCA. The information provided must be accurate and comprehensive. If the FCA lacks information required to assess the transaction, the risk of an in-depth Phase II investigation increases (see Question 4).
Regardless of the transaction volume, the notifying parties must pay a flat fee of EUR1,500 during the Phase I procedure. This filing fee must be paid along with the notification, as the payment of the filing fee triggers the four-week deadline for the Phase I procedure (see Question 4).
If a Phase II investigation is reached, the Cartel Court sets the costs, which vary according to the specific circumstances of the transaction (for example, its size, impact and complexity), up to a maximum fee of EUR34,000.
The undertakings must not take any action to implement the transaction before receiving clearance from the FCA or the Cartel Court (section 17, Cartel Act). If they do, any agreements and actions taken to implement the concentration are void and unenforceable. In addition, they may be liable for fines of up to 10% of the last financial year's turnover (see Question 9).
One or more of the parties must complete the notification (it is often sensible for the parties to jointly complete the notification) and forward the final documents to the FCA, together with the filing fee. It is crucial that the submitted documents comply with the formal and legal requirements and the fee be fully paid. When notification is made, Phase I proceedings begin.
The Official Parties are responsible for assessing notifications during Phase I (see Question 1, Regulatory authorities). The FCA will assess the provided information and publish a summary on its website. Any undertaking whose legal or economic interests are affected by the concentration can submit a written statement to the Official Parties. However, even where the undertaking's objections are well-founded it cannot apply for an in-depth examination (see below, Phase II examination). If the FCA has possible competition concerns, it may accept remedies from the undertakings concerned to remedy those concerns. The transaction can be cleared subject to conditions at the end of Phase I.
The deadline for the proceedings is four weeks after the notification has been submitted. The deadline may be extended to six weeks, if requested by the notifying undertakings within the four-week period. The Official Parties can apply for a Phase II examination. If both Official Parties waive their right to apply or the deadline expires without an application, the transaction is cleared automatically.
The Official Parties have the sole right to apply for a Phase II examination. This usually occurs in one of the following situations:
The FCA applies to the Cartel Court to prohibit the concentration on the grounds that the merger causes competition concerns and no appropriate measures have been found or agreed to resolve those concerns.
The FCA cannot perform a comprehensive examination during the four-week (six-week, if extended) deadline due to lack of information, or because the concentration raises complex competition issues.
The Official Parties can submit the case before the Cartel Court and are automatically parties to the proceedings, independently from the fact that they initially applied.
The proceedings in Phase II must be completed within five months. The deadline may be extended to six months, if requested by the notifying parties within the five-month period. A Phase II examination ends with either the Cartel Court clearing the concentration (possibly with conditions and obligations) or prohibiting the concentration.
For an overview of the notification process, see flowchart, Austria: merger notifications (www.practicallaw.com/2-504-4187).
The following is made publicly available:
A summary of the proposed concentration, published by the FCA on its website (see Question 4, Phase I proceedings). The parties must provide that summary in their notification form. The publication of this summary enables third parties to judge the consequences of the transaction for themselves. The summary contains:
the names and activities of the undertakings concerned;
basic information concerning the intended concentration.
Written objections to the concentration.
The decision to perform a Phase II examination.
The application for a Phase II examination.
The decision to clear a transaction after Phase I or Phase II.
If the undertakings concerned contact the FCA for pre-notification talks, neither the existence of those talks nor their subject matter is published.
The FCA will publish the summary immediately after it receives the notification (see above, Publicity). The timing of further publicity depends on when the information is submitted or the decision made. If the undertakings announce changes to the concentration that alter the summary, those facts will be published at the time the FCA receives this information. This also applies when clearance is granted on the basis of conditions or restrictions.
Apart from the summary, the FCA will, in principle, keep all information that the undertakings have provided confidential and third parties will not have access to any notification materials. However, the FCA can (subject to certain restrictions) provide information regarding the notification to other regulatory authorities, including the European Commission and the competition authorities of other EU member states (see Question 38).
Information provided to the FCA remains confidential except for the summary published on the FCA's website (see above, Automatic confidentiality). It is not possible to request any further confidential treatment for materials submitted.
Undertakings that believe they will suffer adverse effects from the concentration can submit written objections to the Official Parties or the Cartel Court. These objections, even if supported by evidence, will not give those third parties the right to be heard, access the notification materials or be further involved in the procedure. It is possible to submit written statements during both Phase I and Phase II proceedings (see Question 4). The Official Parties and the Cartel Court can seek the views of third parties (for example, customers or competitors) on a voluntary basis during the proceedings, depending on the intended transaction.
Third parties aiming to access documents or files of the concentration must obtain permission from the undertakings concerned. The Official Parties or the Cartel Court cannot grant permission.
Third parties do not have the right to be heard in the proceedings (see above, Representations).
A merger must be prohibited if it would create or strengthen a dominant position. An undertaking is presumed to have a dominant position in certain circumstances (see Question 28).
However, concentrations can be cleared if they:
Are economically justified and essential for the competitiveness of the undertakings concerned.
Will increase competition, and therefore the advantages gained by implementing the transaction will outweigh the disadvantages.
The undertakings concerned can offer and discuss possible remedies during both Phase I and Phase II (see Question 4). Typically, undertakings will suggest appropriate remedies to the FCA during Phase I to avoid the Phase II in-depth investigation. At the end of Phase II, the Cartel Court can clear the concentration on the basis of the undertakings accepting conditions and obligations.
There are no strict rules for possible remedies, and they can be both structural and behavioural. There are no general rules for monitoring the compliance with remedial undertakings given. Possible compliance obligations (such as reporting or filing obligations) of the undertakings concerned must be assessed on a case-by-case basis.
The Cartel Court can impose fines on the undertakings that submitted the notification. Individuals acting for the undertakings are not held liable for infringements under the Cartel Act.
Fines under the Cartel Act are neither administrative nor criminal, but do have a punitive character. The federal government forcefully collects the fines not paid on time (section 32, Cartel Act).
Where the notification is incomplete, or contains incorrect or misleading information, the Cartel Court can impose on the undertaking(s) that submitted the notification fines of up to 1% of their annual turnover in the preceding financial year.
If the undertakings are unable to implement conditions or remedies imposed, the undertakings can apply to the Cartel Court to amend or repeal those conditions (section 12, Cartel Act). If conditions or remedies are not complied with, the Cartel Court can impose fines on the undertakings.
The Cartel Court can impose fines of up to 10% of the preceding financial year's worldwide annual turnover of the undertakings concerned (section 29, Cartel Act). The amount of the fine will depend on the duration and importance of the breach and, in particular, whether the transaction would have been cleared if it had been properly notified.
When setting the fine, the Cartel Court will consider the:
Duration of the breach.
Degree of fault.
Amount of enrichment.
Whether the transaction would have been cleared if it had been properly notified.
Adverse economic effects of the concentration.
Economic ability of the company in breach to pay.
Undertakings must co-operate with the competition authorities. Undertakings that refuse to co-operate, including failing to provide information or documents requested by the Cartel Court, or failing to comply with orders of the Cartel Court, are in breach of the law and subject to fines of up to 1% of their annual turnover (see above, Failure to notify correctly). In the case of further breaches, fines of up to 10% of the annual turnover of the undertaking may be imposed (see above, Implementation before approval or after prohibition).
The parties to the proceedings can appeal against Cartel Court rulings to the Supreme Cartel Court. They cannot, however, appeal the decision to start a Phase II investigation. The appeal must be filed within one month after the decision. The Supreme Cartel Court must decide on the appeal within two months after the appeal has been filed.
The rights of third parties are limited to written statements and objections and they have no rights of appeal.
The clearance decision automatically clears competitive restrictions that are necessary for the concentration (ancillary restraints). Such restrictions can include:
Non-compete obligations of a certain duration.
Licence agreements.
Supply agreements.
These restrictions must, however, be proportionate and limited to what is necessary to implement the concentration.
The thresholds for merger control are lower for undertakings active in the media sector. When calculating the turnover thresholds:
The turnover of media undertakings must be multiplied by 200.
The turnover of media support undertakings must be multiplied by 20. Media support undertakings can include:
publishing houses as long as they do not qualify as media companies themselves;
printing houses;
companies acting as wholesalers of media products; and
companies acting as agents for advertising orders.
In addition, telecommunications and media companies may require special approval from their sector-specific regulators.
When assessing concentrations in the media sector, media diversity must be taken into account, on the basis that the restriction of media diversity may have negative effects on the foundations of a democratic and cultural society (section 13, Cartel Act).
Special turnover calculations apply to credit institutions (section 22, Cartel Act). In addition, transactions concerning banks and insurance companies may require additional clearance from the Financial Market Authority (Finanzmarktaufsicht).
However, banks acquiring shares are exempt from the requirement to notify (even if the turnover thresholds are met) if the purpose of the transaction is to use those shares for any of the following purposes:
Restructuring an insolvent company.
Managing those shares as an investment.
Reselling those shares.
However, the bank must not use the voting rights of those shares, and can only hold them for a limited duration.
Agreements between undertakings, concerted practices or decisions by an association of undertakings that restrict, distort or prevent competition are prohibited (section 1, Cartel Act). Agreements violating the prohibition are legally void and not enforceable in court. Examples of restrictive agreements that are prohibited are agreements to (section 1(2), Cartel Act):
Directly or indirectly fix purchase or selling prices or any other trading conditions.
Limit or control production, markets, technical development, or investment.
Share markets or sources of supply.
Apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage.
Make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of those contracts.
In addition, recommended prices or price limits, calculation regulations, trade margins or rebates are prohibited if they have the object or effect of restricting competition (Empfehlungskartelle). However, recommendations that are not enforced with any economic or social pressure and that are explicitly non-binding are not prohibited (section 1(4), Cartel Act).
The FCA, as the only competent authority, is responsible for initial investigations into restrictive provisions. Formal proceedings are started at the Cartel Court (see Question 18).
Irrespective of their form, any agreements or concerted practices that have as their object or effect the restriction of competition are prohibited. This includes informal talks between undertakings or concerted practices (for example, the exchange of sensitive information).
Agreements (that is, concerted practices or decisions by an association of undertakings) are exempted if they contribute to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and do not (section 2(1), Cartel Act):
Impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives.
Afford those undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
In addition, the following are specifically exempted (section 2(2), Cartel Act):
Agreements regarding retail prices of books, printings, music and newspapers.
Agreements between members of co-operatives.
Agreements, decisions and practices of agricultural producers and associations of producers concerning the production and the distribution of products or use of joint facilities between those enterprises.
De minimis agreements (see Question 16, Exclusions and Statutes of limitation).
Certain agreements can be exempted by block exemption regulations (no Austrian block exemptions have been implemented as yet) (section 3, Cartel Act). The EU block exemption regulations are used as interpretative guidance for the exemptions contained in section 2 of the Cartel Act.
Agreements between undertakings are considered de minimis if both:
The undertakings have a combined market share of no more than:
10% of the relevant market where the undertakings concerned are competitors;
15% of the relevant market where the undertakings concerned are not competitors.
The agreements do not have as their object or effect the fixing of selling prices, the limitation of production or sales, or the sharing of markets.
Fines can only be imposed within five years after the breach has ended (section 33, Cartel Act).
Legislation does not provide a system for the notification of restrictive agreements. It is the undertakings' responsibility to assess whether their behaviour complies with the competition rules.
The FCA will not generally provide informal guidance.
Not applicable (see above, Notification).
Not applicable (see above, Notification).
Not applicable (see above, Notification).
Not applicable (see above, Notification).
The FCA decides whether to start an investigation. It can start investigations on its own initiative or after having received information from an external party.
The Official Parties have the power to start formal proceedings by starting legal proceedings at the Cartel Court.
The FCP has the function of representing the public interest before the Cartel Court, including forwarding information received to the FCA and proposing that investigations be conducted. Third parties that consider that they are affected by any misconduct restricting competition can contact the FCP directly.
Generally, third parties cannot force the authorities to start investigations, and the FCA decides whether or not to start investigations.
However, the following are entitled to file complaints with the Cartel Court to start formal proceedings:
The Official Parties (see above, Regulators).
Special sector regulators within the meaning of section 36 of the Cartel Act (for example, the telecommunications regulator (see Question 12, Media and telecommunications)).
The Austrian Chamber of Commerce, the Austrian Chamber of Labour and the Presidential Conference of the Austrian Chambers of Agriculture.
Every company that has a legal or economic interest in a decision (see Question 19, Representations). This includes, for example, customers, suppliers or competitors of the parties to a restrictive agreement (members of a cartel).
When the Cartel Court receives a complaint, proceedings are started automatically, and the Cartel Court must decide on the complaint.
Third parties can make representations to the Official Parties, providing information about other parties' conduct before an investigation, but they cannot force the Official Parties to start an investigation.
Alternatively, third parties can file complaints directly with the Cartel Court (see Question 18, Third parties). This will make those undertakings parties to formal proceedings, with all associated rights and responsibilities. This will enable them to access all documents of the proceedings and to be heard. However, they must also bear the costs of the proceedings (see Question 18, Third parties).
See above, Representations.
See above, Representations.
The FCA carries out the initial investigation. Following this investigation, the Official Parties may decide to start formal proceedings with the Cartel Court. Only the Cartel Court has the power to issue injunctions or to state that there is a breach of the prohibition on restrictive agreements (see Question 24).
In the procedure, the FCA presents its case and the parties can correspond and put forward their view. This includes written submissions and oral hearings. There is no specific time frame for the procedure. The procedure ends with the Cartel Court issuing a decision that finds either an infringement or dismisses the complaint.
In the proceedings, the FCP has the function of representing the public interest before the Cartel Court. As an Official Party the FCP can submit a case before the Cartel Court, concerning cartel issues, among other things.
Proceedings initiated by the Official Parties. The basic facts and the participants in the alleged infringement are published on the FCA's website. As the outcome of investigations may depend on confidentiality, this information is not usually published at an early stage of the proceedings.
Rulings of the Cartel Court. The Cartel Court's rulings establishing an infringement are automatically published by the Cartel Court on the official website for public announcements and edicts (Ediktsdatei) (www.edikte.justiz.gv.at/).
Business secrets are kept confidential and the disclosure of court records and related data to third parties requires the defendant's consent (section 39, Cartel Act).
As confidentiality is automatic, it is not possible to request additional confidentiality.
The FCA can request information and documents from undertakings, and can conduct an inspection after having obtained a warrant from the Cartel Court.
The Cartel Court has the power to:
Order undertakings to provide information and documents and to enforce the order.
Interrogate parties and witnesses.
Order inspections (see above).
The FCP can:
Forward information received to the FCA.
Review the FCA's files.
Propose that investigations be conducted (but cannot conduct those investigations).
During the FCA's initial investigation, the parties can offer commitments to the FCA to resolve competition problems to avoid proceedings before the Cartel Court.
After proceedings have begun, the parties can offer commitments to the Cartel Court. The Cartel Court can declare these commitments binding on the undertakings concerned (section 27, Cartel Act).
The Cartel Court can issue orders to the undertakings concerned to:
Bring an immediate end to the infringements. These orders must not be excessive in view of the infringements. The Cartel Court can only order structural obligations if:
there are no other equivalent measures available;
other measures would have higher costs for the undertakings concerned.
Accept commitments and declare them to be binding, on the basis that these commitments will prevent future infringements. A decision by the Cartel Court to accept commitments terminates the proceedings, although there are some circumstances that can cause a later reopening of the proceedings.
Declare that an infringement has occurred and the extent to which the actions have breached the Cartel Act if there is a legal interest in such a declaration. A legal interest is present if the finding of an infringement is in the public interest.
The Cartel Court can impose:
Fines of up to 10% of the total turnover of the last financial year on undertakings (or associations of undertakings) for a:
breach of the prohibition on restrictive agreements;
failure to comply with a commitment regarding section 27 of the Cartel Act; or
breach of Article 101 of the Treaty on the Functioning of the European Union (TFEU) (the EU provision concerning anti-competitive agreements).
Fines of up to 1% of the total turnover of the last financial year for not meeting their legal obligation to provide information requested by the Cartel Court by giving wrong, misleading or incomprehensive information.
Penalty payments of up to 5% of the average daily turnover of the last financial year for every day that companies delay complying with a ruling of the Cartel Court.
For the nature of fines, see Question 9, Failure to notify correctly.
Generally, individuals are not held liable for civil competition law infringements under the Cartel Act. However, individuals participating in criminal acts, such as bid-rigging, and individuals violating special laws, such as the Data Protection Act, will be held personally liable under criminal or administrative law (as applicable, depending on the violated provision).
Similar to the EU leniency programme the Competition Act provides a possibility for cartel participants to avoid or reduce fines (Kronzeugenregelung). To receive full immunity an undertaking must meet the following criteria:
The undertaking has stopped its participation in the infringement.
At the time the FCA gets involved, the authority has no prior knowledge of the cartel.
The participant fully co-operates with the FCA and discloses all information available.
The undertaking is not the ringleader, for example, it has not forced other companies to participate in the cartel.
If the FCA has already learned about the infringement it is still possible for an undertaking to receive a reduction in fines if all the other criteria are fulfilled.
The critical issue for immunity is not the procedural stage but rather the possession of information by the FCA. An undertaking must fully co-operate with the FCA and disclose all relevant information.
In all cases, the company must not inform the other participants in the alleged infringement of its co-operation with the FCA.
Agreements and decisions violating the prohibition on restrictive agreements are void. If the restrictive agreement is a part of a wider agreement, the main agreement can be valid, unless:
The violating part was a material part of the agreement.
The contract cannot be separated from the violating part.
The Cartel Act provides that third parties can bring damage claims concerning harm suffered from illegal agreements (private enforcement).
Third party claims have been rare, as the claimant must prove damage, wrongdoing, and that the wrongdoing caused the damage, as well as bearing the risk of the costs associated with the proceedings. Follow-on claims, brought after a competition authority has issued a decision stating that an infringement has occurred, face fewer hurdles. Even in that case, however, third parties do not receive full access to documents held by the FCA or the Cartel Court.
These claims are based on general rules for damage claims in the Civil Code (Allgemeines Bürgerliches Gesetzbuch) (ABGB) (sections 1295 and 1311, ABGB). However, the Cartel Act provides certain specific procedural rules for such claims (such as rules for assessing the amount of the damage).
Austrian law does not provide for class actions and there are no specific rules on this issue in competition law. However, claimants can transfer their damage claims to a single person that acts as a claimant in several joined actions.
The parties to the proceedings can appeal against Cartel Court rulings to the Supreme Cartel Court within four weeks of the Cartel Court's decision. The general rules for appeal laid down in the Civil Procedure Code apply.
Only the parties to the proceedings have the right to appeal (see above, Rights of appeal and procedure).
The abuse of a dominant position is prohibited (section 5, Cartel Act).
The FCA is responsible for initial investigations into abuse of a dominant position. Formal proceedings are started at the Cartel Court (see Question 18).
An undertaking holds a dominant position if it:
Faces no, or no effective, competition.
Has an overpowering market position based on its financial strength, relationships with other undertakings, or access to upstream or downstream markets, taking into account market entry by other undertakings.
A dominant position is presumed to exist if the undertaking concerned has a market share of either:
At least 30%.
More than 5%, and it either:
is one of the four largest competitors in a relevant market that together hold at least 80% market share; or
does not face competition from more than two other undertakings in the relevant market.
These thresholds trigger a shift in the burden of proof, so that the dominant undertaking must prove that it faces effective competition to rebut this presumption.
Two or more undertakings hold a dominant position (collective dominance) if both:
No effective competition between the undertakings exists.
The undertakings concerned in their entirety face no, or no effective, competition or have an overpowering market position.
A collective dominant position is presumed to exist if the undertakings concerned in their entirety have a market share of:
At least 50% and comprise three or less undertakings.
At least two-thirds and comprise five or less undertakings. These thresholds trigger a shift in the burden of proof, so that the dominant undertakings must prove that they face effective competition to rebut this presumption.
A dominant position is not in itself an offence. The Cartel Act provides the following non-exhaustive forms of abuse (section 5, Cartel Act):
Directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions.
Limiting production, markets or technical development to the prejudice of consumers.
Applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage.
Making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subjects of those contracts.
Sale of goods below cost.
A dominant position is not in itself an offence. However, an undertaking holding such a position has a special responsibility not to impede competition by abusing that position. There are no exemptions to that prohibition but there is a large grey area and market players are well advised to seek legal guidance to ensure their compliance.
It is not possible to notify the conduct and the FCA does not generally provide informal guidance (see Question 17).
The same rules apply as for restrictive agreements and practices (see Questions 18 to 21 and Question 23).
The same rules apply as for restrictive agreements and practices (see Question 22).
The general rules relating to fines apply (see Question 24, Fines). In addition, the Cartel Court can impose fines of up to 10% of the total turnover of the last financial year on undertakings (or associations of undertakings) for a breach of the prohibition on abuse of a dominant position.
The same rules apply as for restrictive agreements and practices (see Question 25).
There are no differences between the powers of the FCA and Cartel Court in relation to cases dealt with under Article 101 and/or Article 102, and those dealt with under national law.
The formation of a joint venture is considered to be a concentration that is subject to merger control if the joint venture performs on a lasting basis all the functions of an autonomous undertaking (full-function joint venture) (section 7(4), Cartel Act). For a full-function joint venture to exist, the joint venture must be:
Established on a lasting basis.
An independent business entity (rather than a subsidiary that only performs auxiliary functions for the parent companies).
For the relevant thresholds, see Question 2, Thresholds.
Other joint ventures are examined under the provisions relating to restrictive agreements and practices (see Questions 13 to 26).
The FCA treats co-operation with other jurisdictions as a priority, as competition is not only a national but a global matter. In the EU, the Cartel Court is a competition authority within the meaning of Article 11 of Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the TFEU, which provides for co-operation between the European Commission and the national competition authorities. Outside the EU, Austria has entered into bilateral and multilateral competition agreements. Information on existing agreements can be found on the FCA's website (see box, The regulatory authorities).
Reform of the Austrian competition legislation has been completed in March 2013. The changes focus on de minimis rules, collective dominance and procedural issues. No further reform is expected at the moment.
Description. Official website maintained by the Federal Chancellery of the Republic of Austria, containing up-to-date legislation and case law of the Cartel Court and the Supreme Cartel Court in German.
Description. Official website of the Federal Competition Agency (Bundeswettbewerbsbehörde) (FCA), containing up-to-date general information on Austrian competition law, the activities of the FCA, summary information on merger notifications and so on in German.
Description. Potentially out-of-date English version of the official website of the FCA, with limited content on Austrian competition law, the activities of the FCA, and summary information on merger notifications, among other things.
Contact details. Oberlandesgericht Wien als Kartellgericht
Justizpalast
Schmerlingplatz 11
1010 Vienna
Austria
T +43 1 521 523 346
F +43 1 521 523 690
Outline structure. The Cartel Court comprises:
Seven professional judges.
15 lay judges.
The tribunal for a particular case consists of up to two professional judges and two lay judges. If votes are equal, the presiding professional judge's vote is decisive. Decisions of the Cartel Court can be appealed within four weeks to the Supreme Cartel Court (Kartellobergericht).
Responsibilities. The Cartel Court is the competent court in respect to national and European competition rules. The Cartel Court:
Decides on whether to clear concentrations in Phase II proceedings initiated by the Federal Competition Agency (Bundeswettbewerbsbehörde) (FCA) or Federal Cartel Prosecutor (Bundeskartellanwalt) (FCP).
Decides on applications from the FCA and FCP and undertakings affected by anti-competitive behaviour.
Issues cease and desist orders.
Imposes fines for infringements of competition rules.
Procedure for obtaining documents. Parties to an anti-trust case can access the Cartel Court's case file. Third parties have no rights to access documents.
Head. Dr Theodor Thanner
Contact details. Bundeswettbewerbsbehörde
Praterstrasse 31
1020 Vienna
Austria
T +43 1 245 080
F +43 1 587 4200
E wettbewerb@bwb.gv.at
W www.bwb.gv.at
Outline structure. The FCA is managed by the Director General (DG) for Competition, who is appointed by the federal government. The staff of the FCA is bound by the DG's directives.
Responsibilities. The FCA's responsibilities are to:
Promote the enforcement of the competition rules.
Perform investigations.
Examine mergers in Phase I proceedings.
Make applications to the Cartel Court.
Perform as an official party in cartel proceedings.
Procedure for obtaining documents. The FCA publishes summary information concerning concentrations on its website.
Head. Dr Alfred Mair
Contact details. Bundeskartellanwalt
Schmerlingplatz 11
1016 Vienna
Austria
T +43 1 521 523 057
F +43 1 521 523 690
Outline structure. The FCP is appointed to represent the public interest in competition matters before the Cartel Court. The FCP is subordinate to the Federal Ministry of Justice and is assisted by one deputy.
Responsibilities. The FCP's duty is to represent the public interest in competition matters. This obligation consists of:
Promoting the enforcement of the competition rules.
Examining mergers.
Engaging in competition advocacy by addressing the Cartel Court.
Procedure for obtaining documents. Documents cannot be obtained from the FCP.
T +43 1 531 78 1038
F +43 1 533 52 52
E claudine.vartian@dlapiper.com
W www.dlapiper.com
Professional qualifications. Austria, 1997
Areas of practice. Competition and anti-trust; regulatory; litigation; telecoms law.
Recent transactions
Of counsel
DLA Piper Weiss-Tessbach Rechtsanwälte GmbH
T +43 1 531 78 1014
F +43 1 533 52 52
E florian.schuhmacher@dlapiper.com
W www.dlapiper.com
Areas of practice. Anti-trust and competition law; intellectual property; capital markets and securities; EU law.
Non-professional qualifications. Qualified for professorship, University of Vienna.
Recent transactions
Providing expert opinion in various areas of expertise.
Publications. Numerous publications on Austrian and European competition law and other areas of business law.
Associate
DLA Piper Weiss-Tessbach Rechtsanwälte GmbH
T +43 1 531 78 1118
F +43 1 533 52 52
E georg.muntean@dlapiper.com
W www.dlapiper.com
Areas of practice. Competition and anti-trust; litigation.
